Two-tier judicial quandary

The two-tier judicial system in vogue is now snowballing into a confrontation. The bizarre observation from jurisprudents that the newly-constituted Federal Constitutional Court is not entitled to uphold or implement decisions of the erstwhile Supreme Court has opened a Pandora's box. This is an outcome of the fractured 27th amendment, passed by the parliament in negation of the principle of separation of powers, which is now posing grave questions of legitimacy. It is a doctrine that all decisions of the judiciary are sacrosanct until and unless overturned or reviewed by appellate forums, and that too as ordained by law and the Constitution. Thus, the assumption that the supra-court i.e. the FCC has no binding obligation or jurisdiction to protect decisions of the apex court is non-maintainable under any injunctions of lawfare.

The FCC observation is bound to stir unrest in the judicial circles. Legal dictums are treasure troves and are debatable in good faith. However, they cannot be shunted out on the premise that a forum that invented them has ceased to exist, or a supra body has taken over it. This is where the 1973 Constitution appears jaundiced as the recent amendments have taken out the inalienable aspect of adherence to rule of law, and brought a dual superior judiciary into being.

The traditional doctrine of stare decisis has, thus, come into question. The need of the hour is for the Lords and civil society to stand on the right side of history, and come forward to protect dispensation of justice in all fair play, and not to be cowed down by extra-constitutional tactics. Doing so would be tantamount to undermining the law and judiciary, and seen as a 'provisional constitutional order' taking precedence over a legitimate constitution.

The least room available for tweaking is to state that the FCC can "develop its own jurisprudence without being strictly bound by Supreme Court precedent". While the impugned 27th amendment is still in the dock, it's time to ensure consistency in the judicial system and see to it that these two judicial institutions exercise their powers and maintain coherence.